Compassionate pension may be granted despite dismissal for absenteeism if there is no moral turpitude involved, highlighting the limited scope of review under the Code of Civil Procedure.

ORDER :

SANJAY A. DESHMUKH, J.

1. Heard finally with the consent of the learned counsel.

2. This application is filed for a review of the judgment dated 10.02.2023, passed by this Court, in a writ petition No.5750 of 2021. The said writ petition was filed by the wife and son of the employee late Magan Damare, for compassionate pension, who was serving as a watchman with the applicants herein. His services were terminated and he was dismissed on account of absenteeism after conducting departmental enquiry.

3. The husband of respondent No.1 and father of respondent No.2 was serving with the applicants from 20.11.1981. He served there for 22 years. On account of continuous absenteeism, a departmental enquiry was conducted against him. He was dismissed from service. He did not challenge the dismissal order passed by the applicants. He died on 5.4.2012. The respondent Nos.1 and 2 filed applications/representations dated 21.11.2012 and 28.01.2014 for granting compassionate pension. The said applications were rejected by the applicants. The said orders were challenged before the Maharashtra Administrative Tribunal, Mumbai, Bench at Aurangabad, vide Original Application No. 936 of 2019. The said application was withdrawn on 26.02.2020. Thereafter, writ petition No.5750 of 2021 was filed by the respondents. It was allowed, by setting aside an order dated 21.11.2012, passed on the representation of respondent No.1.

4. Learned A.G.P. for the applicants submitted that the impugned judgment delivered by this court is contrary to the provisions of law. He pointed out the judgment of Hon’ble Supreme Court in the case of Mahinder Dutt Sharma vs. Union of India and others, 2014 (11) SCC 684, wherein it was held that the petitioners therein were entitled for compensatory pension in view of Delhi Police (Punishment and Appeal) Rules, 1980 and Central Civil Services (Pension) Rules, 1972 (hereinafter for the sake of brevity referred to as “the Rules of 1972”). He further submitted that Central Legislation is not applicable to the case of the respondents. Therefore, the said case law is also not applicable to the facts of the claim of respondents which was relied upon by this Court while deciding said writ petition. He also submitted that this court erred in relying upon the said judgment. He submitted that Rule 41 of the Rules of 1972, which provides for compassionate allowance, is altogether different from Rule 101 of the Maharashtra Civil Service (Pension) Rules 1982 (hereinafter for the sake of brevity referred to as “the Rules of 1982”). He submitted that these two rules are different. The word ‘dismissal’ or ‘dismissed’ is not used in Sub-Rule (1) of Rule 101 of the Rules of 1982, however, in Sub Rule (3) of Rule 101, it is specifically stated that dismissed Government servant is not eligible for compassionate pension. So far as Rule 41 of the Rules of 1972 is concerned, the dismissed servant is entitled for compassionate allowance, which was not legally and properly considered by this court. This court erred in relying upon the judgment of the Hon’ble Supreme Court in the case of Mahinder Dutt Sharma (supra) which is not applicable to the case of the respondents. Rule 41 of the Rules of 1972 is erroneously applied to the case of the respondents. He submitted that the said error committed by this court is an error of law and therefore, review application be allowed. He prayed to allow the review application and dismiss the writ petition.

5. Learned advocate for the respondents submitted that by applying the correct provisions of law, the claim of the respondents is rightly considered and allowed by this court. The husband of respondent No.1 had completed 22 years of service with the applicants. His punishment of dismissal is disproportionate, harsh and against the principles of natural justice. Learned advocate for the respondents placed reliance on the judgment of this court dated 24.02.2018 delivered in Writ Petition No. 145 of 2013, Shakuntala